FWC supports Qantas’ decision to fire hungover employee

Apparently, it only took two peach martinis and three gin and tonics to undo this man’s flight attendant career. HRM examines the legal ins and outs.

If personal humiliation is reason enough to turn you off the smell of red wine for a few weeks, you should think yourself lucky not to be this ex-Qantas employee. For him, the smell of peach schnapps will always remind him of the night he racked up a $20,000 hospital bill and lost his job.

Former Qantas flight attendant Luke Urso recently lost his unfair dismissal claim following the Fair Work Commission’s (FWC) decision to support Qantas’ immediate termination of Urso after a night out in New York went terribly wrong.

UPDATE 23/10/18: A Fair Work Commission full bench has granted Urso leave to appeal his dismissal, finding that the Commission failed to properly explain his consumption of “the equivalent of 14 standard drinks” and that the practice of free-pouring at the New York rooftop bar was “a central element of his case”.

Urso, who’d been a full-time international flight attendant since February 2016, allegedly consumed an excessive amount of alcohol while he was on what they refer to as “slip time”, the time in between flights. Urso and some of the other crew members were drinking at a rooftop bar in New York and were due on an evening flight to LA the next day.

A higher law

“Qantas is subject to international civil aviation regulations that require its aircrew to have no impairment on duty from the use of drugs or alcohol”, says Aaron Goonrey, partner at Lander & Rogers.

“Specifically, regulation 256(3) and (4) of the Civil Aviation Regulations 1988 provides that the aircrew are not to drink any alcohol for eight hours before flying or during flight. So a zero tolerance alcohol or drug policy will most likely be viewed as appropriate where an employee is carrying out safety-critical work such as a flight attendant,” says Goonrey.

While Urso says he only consumed “two peach martinis and three gin and tonics”, other witnesses recall he’d consumed between 14-18 drinks standard drinks in less than two hours.

At one point, Urso was found throwing up in the bathroom before he collapsed. He was taken to hospital at midnight, where he recorded a blood-alcohol reading of .205. He wasn’t released until 6am. While Urso likely picked up his own bar tab, Qantas foot the $20,000 bill for the ambulance and hospital care.

Investigating out-of-hours conduct

“Five drinks is the amount that I normally consume,” says Urso. “I have never experienced such a negative reaction to the standard amount of alcohol that I consume. For this reason, I believe that my drink may have been spiked. I do not recall vomiting or collapsing in the bathroom.”

Goonrey says that employers may investigate any issues it deems relevant to the matter.

“While the employee said his drinks were spiked, it appears Qantas had witnesses who suggested otherwise. On that basis, Qantas seemingly has, on the balance, preferred the other witnesses’ accounts to the employee’s – keeping in mind that the employee’s blood alcohol reading was .205!”

Urso was unable to report for duty the following day, nursing what we can only assume was one hell of a hangover, and returned back to Australia four days later as a passenger. Upon return, he was suspended on pay while Qantas conducted an investigation. He was officially dismissed on 2 November 2017.

In the FWC decision paper, deputy president Lyndall Dean said, “I am unable to conclude that his dismissal by [Qantas] was unfair and I do not consider his dismissal was disproportionate to the gravity of the misconduct in respect of which [Qantas] acted”.

The exception to “off-duty”

“There would need to be a connection to work in order for the employer to take action against an employee for out-of-work conduct,” says Goonrey.

Referring to a previous employment issue at Telstra, Goonrey notes that “the FWC says out-of-hours conduct must have a sufficient connection to the employment relationship, and would objectively be viewed as likely to cause damage to the employment relationship, or the employer’s interests”.

However, considering that Urso’s employment was considered a “safety critical role” it was easier for Qantas to fire him for out-of-hours conduct as his actions impaired his ability to perform duties safely.

What if he just went ice-skating instead?

Under Qantas’ Cabin Crew Administration Manual (CAM), it states, “while on slip Cabin Crew must not engage in any activity that manifestly increases the risks of illness, injury or other reason that would prevent them from performing their next operational duty”.

Technically, this could mean that employees who choose to engage in other risky activities, such as ice-skating or rock climbing, could also find themselves in Urso’s position.

“Any Qantas employee that engages in any behaviour that [increases their risk of injury] is likely to be in breach of that [CAM] policy and may face disciplinary action. Whether that out-of-hours conduct would be severe enough to be dismissed would depend on the facts of the case,” says Goonrey.

Urso’s story acts as a cautionary tale, proving that “what happens out-of-hours, stays out-of-hours” isn’t necessarily a truism. It’s a shame this lesson came at the expense of a man’s job.

As a frequent QANTAS passenger I’m reassured they’re treating my safety and welfare as a key priority by not allowing people with a wreckless disposition to serve as cabin crew.

Reply

5 months ago

Guest

Ignatius

Excellent decision. As responsible adults we take responsibility for our own actions. Qantas has a responsibility to the well-being of its customers. It is clear that this employee did not consider this in his actions. I don’t believe there is room for leniency when considering the potential reckless endangerment of passengers. Not to mention the $20k squander of company funds to rectify his reckless acts.